On March 23rd 1994 the Child Sex Tourism bill was introduced into the Houseof Representatives.
This act, which amended the Crimes Act of 1914, enabling theAustralian government to prosecute Australian child sex offenders overseas. Before the introduction of this new legislation, if an offence was committedoverseas and not punished whilst in the country, Australian law officials werepowerless. The proposed changes in the law are to deal with the following issues:Firstly sexual offences committed by Australian Residents overseas, particularlyin relation to acts of paedophilia committed within the major trouble spot, Asia. This section refers to anyone who commits a sexual act on a child under the ageof sixteen, at the time that the offence was committed.
Also the changes intendto deal with organisations that may run or promote child sex tours, such astravel agencies and the like, who have specifically run sex tour packages. Defences to these offences such as stating that the defendant had no knowledgeof the child’s age will be also targeted, as currently, this is a majorstumbling block on the course to justice. Finally to save time and cost, videolink hearings will be setup between the child in question overseas, and theAustralian courts. The changes stated above were required to not only protect abused childrenresiding overseas, but to prove that the Australian Government is in touch withthe community values within Australian cities. The amendments made to the lawwere needed because of the shameful amount of Australians indulging in sexpractices with minors in countries other than Australia. Before the law wasamended the general feeling among those involved in the process was that theChild Sex Tourism Act would have to carry severe penalties with it.
The reasonfor such hefty penalties is that the law had the potential to be more of adeterrent to ‘would be’ offenders and to also reflect the desire of theAustralian community. It was obvious ever since the Act was drafted that itwould, by no means, be an easy law to enforce. Within the Australian community many high ranking authorities expressedtheir attitudes towards the new law publicly. Several of the comments spokenappeared one sided, also, many conflicted with opinions already offered to thepublic in regard to fair trials. “If Parliaments adopted this (Bill) it would be an absolute outrage, firstly,because you would have people wanting it in other legislation. You would throwaside 200 years of criminal justice with fairness for the accused.
Fairness forthe accused is also fairness for the community. ” This statement was expressed byMr. John Dowd. Another statement that supports the argument Mr. John Dowdpresents, is the response Mr. Martin Sides, QC, offers.
“It is my view thatthere are significant and powerful procedures that are not available to accusedpersons or, for that matter, the prosecution, in this legislative scheme. ” In conflict with the views of Mr. John Dowd and Mr. Martin Sides, SenatorMargaret Reynolds presented this argument.
“I do not propose to comment on thetechnicalities of the Bill except to emphasise that it is essential that theintention of the Bill be fully maximised. The significance of the Bill’sdeterrent effect must not be jeopardised by any legal uncertainty which couldresult in an unsuccessful prosecution. ” The first two statements mentioned in the above paragraphs offer the viewthat the Bill will obstruct the right of an individual to undergo a far trial. In conflict with these statements, Senator Margaret Reynolds accentuates thatthe Bill enforced with its full potential, as act as a deterrent, against ‘wouldbe’ offenders. She expressed that if this task is accomplished, there would beno question of an unfair trial.
During the campaign to introduce the new act into the law, many groups ofindividuals and institutions played an active role in the process of introducingthe new law. Whether their part be major or minor, all of the institutionsmentioned in the following paragraphs helped to introduce the amendment into theCrimes Act. ECPAT is a well known institution that has played a leading role in thecampaign to stop child sex tourism in Asia; as the name suggests: ECPAT (EndChild Prostitution In Asian Tourism). ECPAT consists of several community mindedgroups who all gel together to shape a well rounded institution with a lot ofinfluence within the nation.
The institution as a whole carried out an educationcampaign within Australia. This education campaign focussed on the abundance ofchild sex tourism. LAWASIA is another group of individuals that devoted many hours of theirtime in assuring the new legislation was passed in Parliament. LAWASIA is agroup of private attorneys that, in 1993 assembled the first World Congress onFamily Law and Children’s Rights. This convention expressed overwhelming supportfor the new legislation. Another first in the way of conventions was the first World Congress on theCommercial Sexual Exploitation of Children.
The convention was held in Stockholmand was attended by officials from 115 nations and also representatives fromover 400 non-government organisations. This convention debated the widespreadissue of child sex tourism, in particular, Cambodia was targeted. Cambodia wasspecifically targeted as in 1990, it was estimated that there was about 1500commercial sex workers. The UNICEF organisation now estimates there to be morethan 50, 000 commercial sex workers, with almost half of that figure under theage of 18. These alarming figures certainly help to alert the governments of theworld that the Child Sex Tourism industry is booming and it must be stopped.
Prior to the introduction of the amendment in the Crimes Act, regardingchild sex tourism, many demands were made for the change in the law. A reportwas produced by the Standing Committee on Legal and Constitutional Affairs, itwas titled “Crimes (Child Sex Tourism) Amendment Bill 1994”. This publicationcontained many recommendations which were made by the standing committee, theyincluded, recommendations that the Attorney-General and the Minister for Justice,advise the states to take action in regards to the recommendations made in thereport. The committee recommended that the Bill protect people under this Act asit would under any other law. A recommendation was also given that in the caseswhere video link is to be incorporated, the tradition of the fair trial must beupheld. The final recommendation made by the report was that there should be alarge degree of discussion between all parties before the introduction of theamendment.
In response to these recommendations and pressure from other non-governmentinstitutions, such as ECPAT, on the 5th of July, 1994, the legislation toprotect overseas children from Australian sex offenders, came into effect. Thislegislation was finally brought into effect after many hours of furious debatebetween many parties. The majority of these parties believed that thelegislation had great potential, and with this support, in a democratic society,the legislation was finally passed and the law was amended. The legislation wasdrafted to incorporate many features that were recommended by the StandingCommittee on Legal and Constitutional Affairs.
Video links were established incourt cases where the child in question, was located in an overseas country. This saved the courts time and money, but it also creates the possibility of thechild being made-up to appear younger or older, all depending on who is payingthe most, the defendant, or one of his enemies. Many of the groups spoken about in the above paragraphs did not go ‘out on alimb’ with their views, they merely reflected the values which the majority ofthe community supports. A commanding value among the community of Australiancitizens is that sex between minors and adults should be outlawed to an upmostextent, even if this means chasing offenders overseas. With that value in mind,the Child Sex Tourism Legislation was drafted.
Community values reflect largelyin the legislation. As a whole, the Australian community respects the childrenof the world, and their right to innocence. This innocence can be shattered bypimps who do not have the same respect for children that many Australians share. Hefty penalties which are associated with the legislation reflect this one majorcommunity value.
The maximum penalty carried with the Child Sex Tourism Act isseventeen years imprisonment. Although, some may think that this maximum penaltyis rather severe, in order to please the majority of the community and to act asa deterrent, the penalties were set. Before the legislation was drafted, Parliament established a StandingCommittee to research these community values in association to child sex tourismand to later submit a report to Parliament containing recommendations. The report which Parliament requested was completed in May 1994 andcontained several recommendations which were mentioned above.
To this reportParliament reacted swiftly in drafting the Child Sex Tourism legislation andclearing a quick passage for the legislation to pass through Parliament. Thespeed at which the legislation was passed was due to the overwhelming supportshowed by all Government parties in the introduction of the legislation. Thelegislation incorporated all of the recommendations given by the StandingCommittee, which gives an indication of Parliaments intention in pleasing thecommunities values in passing this legislation. Parliament respected the wishesof the community by including hefty penalties for not only having sex with aminor but also other offences including, committing an act of indecency on achild and submitting to an act of indecency committed by a child. Both of theseoffences carry a maximum penalty of twelve years imprisonment. In the drafting of the legislation, Parliament was restricted by the amountof man power which could be assigned to uphold a law against offences committedin other countries.
This restriction was found to be even harder to overcome asmany of the law officials overseas were easily bribed by wealthy Australianbusiness men. To overcome this restriction Parliament realised the law wouldhave to act well as a preventative measure The Child Sex Tourism legislation brings about a mile stone for theAustralian judicial system. This is the first piece of legislation that allowsthe prosecution of Australian residents when the offence is committed overseassince the introduction of the war crimes legislation over six years ago. Thelegislation has also brought with it an increasing awareness of the practiceswhich a small minority of Australian residents and companies choose to indulgein. The implementation of the new legislation must act as quite a deterrent tothose within the community who are involved in these practises.
It has alsoopened up a whole new Pandora’s box of possibilities in relation to other lawsbeing implement in the same fashion. As a whole the majority of members withinthe community are pleased with the final result. After many hours of publicdebate and furious pressure from advocate groups, the federal Parliament hasshown that although a crime which, if committed in an Australia would be harshlydealt withh, it cannot be committed in a more socially relaxed country. Althoughsound in theory the legislation has many a problem in practice. This problemswere shown specifically in the case brought against the Australian diplomat, MrJohn Holloway. Mr Holloway was accused of having sexual intercourse with a childunder the age of 16, but the trial was abandoned due to insufficient evidence.
BIBLIOGRAPHY1). “A legal brake on Parliament” The Australian, 15 November 1996. 2). “Crimes (Child Sex Tourism) Amendment Bill 1994, Second Reading” WeeklySenate Hansard, 30 June 1994. 3). “Crimes (Child Sex Tourism) Amendment Bill 1994” House of RepresentativesStanding Committee on Legal and Constitutional Affairs, May 1994.
4). Farrar, P. “Comview” 1996. 5). “Fordham International Law Journal” Volume. 18:1852.
6). “Pedophiles likely to flout new law” Herald Sun, (1st edition), 22 March1995. 7). “Police urge new strategy to hit child-sex tourism” The Age, 15 November1996. 8). “Sex Slaves” The Age, 26 August 1996.
9). “The children’s crusade” The Age, 16 November 1995. 10). “UN report urges ban on child sex” The Age, 13 March 1993.
Category: Law
